Hawaii’s Shorelines
The vast majority of Hawaii’s population lives
and works near the state’s 1,052 miles of shoreline. Some
scientists believe that this large coastal population has had
dramatic effects on the shoreline environment. While preserving
shorelines for environmental, aesthetic, and economic reasons is
a professed goal of government, unfortunately this goal is often
pursued at the expense of the property rights of coastal
property landowners.
Among the critical issues facing shoreline
owners are where and how the legal “shoreline” is located, the
size of the buildable zone on their parcels, and how erosion may
affect their property rights.
Where is the “Shoreline”?
Determining the location of the legal
“shoreline,” where the public beach ends and private property
begins, is an important issue for oceanfront landowners and the
beach-going public. State law defines the shoreline as the upper
reach of the wash of the waves at high tide during the season of
the year when that reach is highest (not including storm waves),
usually indicated by the vegetation or debris line. This
amorphous definition makes determining the legal shoreline of a
particular parcel a somewhat difficult task, especially if the
landowner has been landscaping at or near the shoreline so that
the location of a naturally occurring vegetation or debris line
is unclear.
In addition to marking the boundary between
public beach and private land, locating the exact position of
the shoreline is also the starting point for measuring the
shoreline setback line and the buildable area on an oceanfront
parcel.
A necessary step before certain permits and
variances for construction near the shoreline will be considered
by the counties is shoreline certification by the State Board of
Land and Natural Resources ("BLNR"). The shoreline certification
by the BLNR serves as a temporary governmental recognition of
the precise location of the shoreline at a particular lot for
purposes of implementing the shoreline setback laws, though it
is not a determination of the shoreline for ownership purposes.
As part of the certification application, the landowner must pay
for a shoreline survey that is submitted to the BLNR with the
certification application. The certification process is
relatively slow, taking from 3-5 months from the date of the
initial survey to the date of certification. Shoreline
certifications are valid for only one year, and the shoreline of
a eroding parcel of land can move inland with each new
certification, making long term planning essential for shoreline
development.
Shoreline Setbacks and Buildable Area
Shoreline Setback rules prohibit permanent
structures on private property within the “shoreline area,”
which is defined as all the land between the “shoreline” and the
“shoreline setback line.” The State has established a minimum
line at no less than 20 feet and no more than 40 feet inland,
but it also authorized the counties to modify the setback lines
by moving them even further mauka, and there has been some
variation from county to county.
For example, the City & County of Honolulu’s
shoreline setback is a uniform 40 feet for Oahu parcels, but
Maui County has variable setbacks that vary by location, based
on the estimated annual rate of beach erosion. Consequently, a
Maui property fronted by a quickly eroding shoreline has a much
larger shoreline setback area and a smaller buildable area than
an identically sized Maui property fronted by a shoreline that
is predicted to erode at a slower rate.
Exceptions to the Setback Rules: Variances
The general rule is that nothing permanent can
be built makai of the shoreline setback, in the shoreline area.
However, certain exceptions, called “variances,” are may be
available to allow certain structures in the shoreline area if
“hardship” will result if the structure is not permitted. For
example, a seawall might be allowed in the shoreline area if it
is necessary to protect an oceanfront home from suffer severe
storm, wave, and/or erosion damage.
However, applying for a shoreline variance is an
expensive process that can take more than a year to complete,
with no guarantee of success. In recent years, demonstrating to
the government that sufficient “hardship” exists has become more
difficult in the face of assertions that coastal development and
shoreline hardening by seawalls contribute to beach loss and
environmental damage. Nowadays, a seawall would probably not be
allowed simply to freeze an eroding shoreline in place and stop
an oceanfront lot from shrinking, especially if the applicant’s
home does not yet appear to be threatened.
Seawalls and Shoreline Hardening
As eroding shorelines move inland and the
counties make their setback rules more restrictive, oceanfront
property owners find that not only are their lots shrinking, but
the shoreline setback area is creeping mauka, further reducing
the buildable area of their properties, and further inland over
their property.
Not only does the moving setback area reduce the
buildable area, but as it moves inland and reaches houses and
other structures already legally built, those structures then
become “nonconforming structures” under the setback rules. If a
non-conforming structure is severely damaged, it may not be
legal to repair it without a shoreline setback variance.
What is an owner to do when faced with
erosion?
One approach is to seek a shoreline variance to
build a seawall or sloped revetment to “harden” the shoreline.
Seawalls completed before 1970 or that received a building
permit or variance before 1989 are permitted as non-conforming
structures and “grandfathered,” but if severely damaged by a
storm (as many were in the 1982 and 1992 hurricanes), a variance
may also be required to repair. Building or repairing a seawall
without permission in the shoreline setback area or makai of the
legal shoreline can result in significant fines and costly
forced demolition.
Tips for Shoreline Landowners and Purchasers
Learn the rules and understand them. The State
and county rules that affect your property are complex and could
negatively impact your ability to protect your parcel or build
on it.
Plan before taking action. Unlawfully repairing
or building a seawall, using temporary shoreline protection
methods such as sandbags, or planting vegetation makai of the
shoreline may result in fines or other penalties, as well as
costly remediation measures.
Ask questions. If you own an oceanfront lot, or
you are thinking about purchasing one, it is essential that you
learn everything you can about the history and current status of
the property. Doing a shoreline audit now can help you
anticipate future complications and plan accordingly.
Some of the questions you need to ask:
-
What setback variances and permits have been
applied for or acquired in the past?
-
Is or was there a shoreline protection
structure, and is or was it built legally?
-
How quickly is the shoreline eroding at this
particular location?
-
How far back, exactly, is the setback line
on the lot, and how far back will it be if your county, like
Maui, adopts a variable setback line based on the annual
erosion hazard rate?
-
Do you have any non-conforming structures or
any structures that are likely to become nonconforming in
the next few years?
-
Do your neighbors have shoreline hardening
structures, or have they applied for variances to build them
in the past?
The answers may significantly affect the value
of your oceanfront lot and your ability to build or maintain a
house or other structure.
